LPA Attorney's That Don't 'Care A Lot'

If you have not seen the recently released black comedy I Care A Lot [C1]   you are in for a treat.  Rosamund Pike plays Marla Grayson, a Guardian who is appointed by the Court to care for elderly people who have lost mental capacity.  However, Marla’s form of ‘caring’ consists of forcing vulnerable elderly people under her guardianship and then stealing from them.  Although the film is an entirely fictional tale the story is loosely based on facts.  Inspiration seems to come from a 2017 New Yorker article How the Elderly Lose Their Rights[C2] .  In the UK there have been similar reports of elderly economic abuse, especially under Lasting Power of Attorneys (LPAs), where an Attorney appointed to manage an elderly person’s affairs defrauds them.

What is a Lasting Power of Attorney?

An LPA is created by a Donor who appoints an Attorney (or Attorneys) to manage their affairs if they become mentally incapacitated.  There are two types of LPAs:

1. Financial LPA – allows an Attorney to take care of the Donor’s financial affairs, for example, pay bills, manage investments, and buy and sell property.
2. Health and Welfare LPA – an Attorney can make decisions concerning the Donor’s health and welfare, for example, whether they should enter a care home, and organise and dispense medication.  They can also arrange doctor appointments and hospital visits.

Although these are wide-ranging powers, an Attorney must make decisions within the scope of the authority conveyed to them under the LPA drafted by the Donor.  Furthermore, an Attorney has a statutory duty under the Mental Capacity Act 2005 to always act in the Donor’s best interests.

Warning signs of elder abuse through an LPA

The World Health Organization (WHO) [C3] defines elderly financial abuse as:

”The illegal or improper exploitation or use of funds or other resources of the older person.”

Another researcher defines it as:

"the unauthorised and improper use of funds, property or any resources of an older person." This included the use of theft, coercion or fraud to obtain or try to obtain the older person's money, possessions or property.”[1]

Several red flags can indicate that an Attorney is abusing their position.  These include:

• Excessive gifts – although Attorneys can give gifts to friends and family on behalf of the Donor for occasions such as birthdays and weddings, these should not be excessive and should be in proportion to what the Donor would have given before losing capacity. 
• Credit cards or loan applications are taken out in the Donor’s name – Unnecessary debt that does not benefit the Donor is a strong indicator that an Attorney is abusing their powers.  For example, in Re Harcourt MHLO 74 (LPA), a manager at the Donor’s care home became suspicious when the Donor began to receive letters concerning credit cards and bank loans being taken out by her daughter in her Mother’s name.  The Court found that the daughter was exploiting her position as her mother’s Attorney for her own financial gain.
• Sudden changes to the Donor’s Will – If the Donor’s Will is amended or re-drafted, especially without the advice of a Solicitor, it could be a sign of forgery or that undue influence is being exercised on the Donor.

Other signs to view with concern include large amounts being withdrawn from the Donor’s bank account, the Donor being placed in a care home far below the standard they can afford, and the Attorney selling assets and possessions that the Donor would not have parted with if they had capacity.

It is also important not to ignore a feeling that ‘something is not right’.  An LPA Solicitor can make discreet enquiries if you are concerned and advise you on what to do if discrepancies in the Attorney’s behaviour is discovered.

Final words

Some of the most heart-breaking scenes in I Care A Lot involve Marla’s new client, Jennifer Peterson (Dianne Wiest) being led into a care home after all her rights have been taken away (don’t worry, this seemingly vulnerable old lady has a gangster son who soon springs into action to free her).  Although most Attorneys carry out their duties legally and compassionately, elder financial abuse is a serious problem[C4] .  In 2018-19, the England and Wales Office of the Public Guardian[C5]  (OPG) recorded over 700 cases where applications for court orders against Attorneys deemed to have acted in their own interests rather than those of the Donor.  Furthermore, nearly 3,000 safeguarding investigations were launched - a significant uplift on the previous year.

What can be done if it is found an Attorney has failed to act in the Donor’s best interests?  If the Donor has capacity, they can cancel the LPA by signing a Deed of Revocation.  If you have evidence of abuse, an application can be made to the Court of Protection to cancel the LPA and have a Deputy manage the Donor’s finances.

However you decide to deal with your suspicions, it is imperative to get legal advice from an experienced LPA Solicitor.  They can manage the Deed of Revocation/application process to the Court of Protection and take steps to ensure the Donor’s financial position is protected.

To speak to one of our Private Client Solicitors, please email info@brethertons.co.uk or phone 01295 270999 (Banbury Office), 01869 252161 (Bicester Office), or 01788 579579 (Rugby Office).